Davis Successive § 2255 Challenges: Petitioner Must Prove the § 924(c) Sentencing Rested on the Residual Clause

Introduction

United States v. Sandoval-Flores (10th Cir. Mar. 6, 2026) addresses a recurring post-United States v. Davis, 588 U.S. 445 (2019) problem: when a defendant brings a second-or-successive motion under 28 U.S.C. § 2255 challenging a 18 U.S.C. § 924(c) conviction, how does the defendant prove the sentencing court relied on the now-unconstitutional “residual clause” rather than the still-valid “elements clause”?

The case arose from a violent confrontation in which Julian Sandoval-Flores fired on law-enforcement officers while protecting drugs and money. He pleaded guilty to two counts of attempted murder (18 U.S.C. § 1114(a)(3)) and one § 924(c) count predicated on attempted murder, among other charges, and he agreed to a broad collateral-attack waiver. After Davis, he sought to vacate the § 924(c) conviction via a second-or-successive § 2255 motion, claiming the conviction depended on § 924(c)(3)(B)’s residual clause.

The key issues on appeal were: (1) whether Sandoval-Flores could show, by the governing burden of proof, that the sentencing court relied on the residual clause; and (2) how to evaluate that question when the sentencing record is silent. The Tenth Circuit affirmed denial of relief on the ground that Sandoval-Flores failed to carry his burden to prove residual-clause reliance.

Summary of the Opinion

The Tenth Circuit affirmed the district court’s denial of the successive § 2255 motion without reaching all other grounds (including the plea waiver), relying on the district court’s alternative holding: Sandoval-Flores did not establish by a preponderance of the evidence that the sentencing court relied on § 924(c)’s residual clause.

Because neither the sentencing record nor the “relevant background legal environment” in 2001 indicated that reliance on the residual clause was more likely than not, the Davis-based challenge failed.

Analysis

Precedents Cited

1) The Davis framework and retroactivity

  • United States v. Davis, 588 U.S. 445 (2019): Invalidated § 924(c)(3)(B)’s residual clause as unconstitutionally vague, while leaving § 924(c)(3)(A)’s elements clause intact. Sandoval-Flores’s claim depends on showing his § 924(c) conviction rested on the residual clause.
  • Welch v. United States, 578 U.S. 120, 130 (2016): Used (together with Davis) to support retroactive application on collateral review. The panel notes retroactivity as the reason authorization was granted.
  • In re Mullins, 942 F.3d 975, 979 (10th Cir. 2019): Cited for Davis’s retroactive application in the Tenth Circuit’s successive-motion gateway context.

2) Successive § 2255 procedure and the “who decides what” structure

  • United States v. Copeland, 921 F.3d 1233, 1238 (10th Cir. 2019): Cited for the requirement that a defendant must obtain appellate authorization before filing a successive § 2255 motion in district court. More importantly, Copeland supplies the method for determining residual-clause reliance (record evidence and, if silent, the “relevant background legal environment”).

3) Standard of review and Rule 52(a) tension

  • United States v. Driscoll, 892 F.3d 1127, 1130 (10th Cir. 2018): Provides the general § 2255 appeal standard—legal issues de novo; factual findings for clear error.
  • United States v. Spaeth, 69 F.4th 1190, 1204 (10th Cir. 2023) and United States v. Copeland, 921 F.3d 1233, 1242 (10th Cir. 2019): Noted for statements that de novo review may apply when no evidentiary hearing is held.
  • Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985): Invoked to emphasize that Fed. R. Civ. P. 52(a)(6) generally requires clear-error review for factual findings—even those based on documents or inferences—creating “some tension” with prior circuit statements. The panel flags the issue but does not resolve it because an evidentiary hearing occurred.

4) The governing burden: proving residual-clause reliance

  • United States v. Cooper, 159 F.4th 768, 772-73 (10th Cir. 2025): Supplies the controlling burden statement: a movant “bears the burden of proving by a preponderance of the evidence” that the residual clause caused the § 924(c) enhancement. Cooper also frames the inference logic—if there was “no need” to use the residual clause, the movant fails.

5) Attempted murder and the elements clause; the categorical approach

  • Braxton v. United States, 500 U.S. 344, 349-50 & n.* (1991): Used to describe the elements of a federal attempt-to-kill offense: “substantial step” plus “specific intent” to kill. This helps the panel assess attempted murder’s relationship to “attempted use” of force.
  • United States v. Luskin, 926 F.2d 372, 373 (4th Cir. 1991): The principal pre-2001 case identified in the “holding” category suggesting intent-to-commit-murder travel qualifies under § 924(c)’s elements clause (and also under the residual clause). The panel treats Luskin as supportive of an elements-clause view and rejects the argument that it is “inapposite” merely because it did not expressly use the categorical-approach label.
  • Taylor v. United States, 495 U.S. 575, 602 (1990): The source of the “categorical approach,” which compares statutory elements rather than case-specific conduct. The panel uses Taylor to answer Sandoval-Flores’s critique of Luskin and to reaffirm that the relevant analytic method was already available in 2001.
  • United States v. Kendall, 876 F.3d 1264, 1267 (10th Cir. 2017): Quoted for a modern statement of the categorical approach and the “could be convicted without committing a crime of violence” test. Its role is explanatory: it articulates the method the panel assumes courts would have applied (or reached the same conclusion under) in 2001.

6) Post-2001 decisions used as confirmation of how courts interpret the elements clause

The court emphasizes that later cases do not establish the controlling law in 2001, but can “support[] our understanding” of how courts would have interpreted the law at the time. It then cites a uniform body of decisions recognizing attempted murder as an elements-clause crime of violence:

  • United States v. Pastore, 83 F.4th 113, 120 (2d Cir. 2023), aff’d sub nom., Delligatti v. United States, 604 U.S. 423 (2025)
  • United States v. Smith, 957 F.3d 590, 596 (5th Cir. 2020), abrogation on other grounds recognized by United States v. Robinson, 67 F.4th 742, 750-51 (5th Cir. 2023)
  • Rose v. United States, 153 F.4th 664, 669 (8th Cir. 2025)
  • Dorsey v. United States, 76 F.4th 1277, 1283 (9th Cir. 2023)
  • Alvarado-Linares v. United States, 44 F.4th 1334, 1347 (11th Cir. 2022)
  • United States v. Báez-Martinez, 950 F.3d 119, 132 (1st Cir. 2020)

Within the Tenth Circuit, the panel notes there is no published decision directly on point but cites unpublished decisions consistent with the same logic: United States v. Ivory, 861 F. App’x 233, 237-38 (10th Cir. Jul. 6, 2021), United States v. Rayford, 840 F. App’x 393, 394 (10th Cir. Mar. 22, 2021), and United States v. Neely, 763 F. App’x 770, 780 (10th Cir. 2019).

7) Attempt law and the “substantial step” argument

  • United States v. Washington, 653 F.3d 1251, 1264 (10th Cir. 2011) and United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985): Cited by Sandoval-Flores to argue that attempt liability can be based on non-forceful conduct (a “substantial step”). The panel rejects the inference because the elements clause expressly includes the “attempted use” of force, and there was no supportive appellate precedent for treating attempted murder as outside that clause.

Legal Reasoning

  1. Identify the dispositive question. The panel does not decide whether attempted murder is a crime of violence in the first instance for purposes of the original sentencing record. Instead, it frames the successive § 2255 inquiry as historical and probabilistic: did Sandoval-Flores prove that the sentencing court more likely than not used the residual clause?
  2. Apply the two permissible proof routes from circuit law. Following United States v. Copeland and United States v. Cooper, the panel recognizes two ways to meet the burden: (a) point to explicit residual-clause references in the record (PSR, sentencing colloquy, etc.), or (b) if the record is silent, show that the “background legal environment” would have effectively compelled reliance on the residual clause (e.g., elements clause foreclosed).
  3. Route (a) fails: the record is silent. Both parties agreed the sentencing record contains no residual-clause reference.
  4. Route (b) fails: the background legal environment did not foreclose the elements clause. The panel looks for authority around the 2001 sentencing date indicating attempted murder could not qualify under the elements clause. It finds none. Instead, it finds at least one pre-2001 decision (United States v. Luskin) consistent with an elements-clause approach and notes the categorical approach was already established by Taylor v. United States.
  5. Modern consensus corroborates the likelihood of an elements-clause ruling. The court uses later cases not as controlling “2001 law,” but as evidence that courts—when faced with the question—treat attempted murder as involving the “attempted use” (or threatened use) of force. Given that landscape, the sentencing court would have had “no need” to rely on the residual clause, defeating the preponderance showing required by United States v. Cooper.
  6. Disposition. Because Sandoval-Flores fails at the threshold “residual clause reliance” showing, the panel affirms denial of the successive § 2255 motion.

Impact

1) Reinforcement of a demanding evidentiary posture in Davis successive motions.
The most practically important effect is that movants in the Tenth Circuit must come forward with evidence (record references) or a compelling historical argument (background-law foreclosure) to show residual-clause reliance. Silence in the record, combined with an available elements-clause path, will commonly be fatal.

2) Narrowing relief where the predicate offense is “obviously” force-centric.
For predicates like attempted murder, the opinion signals that, absent unusual historical authority, it will be difficult to prove a sentencing court needed the residual clause. This reasoning may extend to other attempt crimes where the completed offense is widely treated as a force offense and the elements clause includes “attempted use” of force.

3) Litigation focus shifts to sentencing materials and contemporaneous case law.
The decision encourages defendants to build their record-based argument (PSR language, plea colloquy, sentencing remarks, charging documents where relevant) and to research contemporaneous precedent showing an elements-clause theory was unavailable at the time.

4) A note (not a holding) on appellate review standards in § 2255 cases.
The footnote highlighting tension with Rule 52(a)(6) may be cited in future disputes over whether “no evidentiary hearing” automatically triggers de novo review of fact-like determinations. The panel does not resolve that issue, but it places the concern on the record for future cases.

Complex Concepts Simplified

§ 924(c) “elements clause” vs. “residual clause”
The elements clause (§ 924(c)(3)(A)) asks whether the offense’s legal elements require the “use, attempted use, or threatened use” of physical force. The residual clause (§ 924(c)(3)(B)) asked whether the offense, “by its nature,” involves a substantial risk that force may be used. Davis struck down only the residual clause.
Categorical approach
A method (from Taylor v. United States) where courts look to the statute’s elements, not what the defendant actually did, to decide if an offense counts as a crime of violence. If the statute can be violated in a way that does not satisfy the definition, it is not categorically a crime of violence.
Second-or-successive § 2255 motion
After a first § 2255 motion, later motions face gatekeeping. The defendant must obtain authorization from the court of appeals and then satisfy strict statutory requirements in the district court.
Preponderance of the evidence
The movant must show something is more likely true than not. Here: more likely than not the sentencing court relied on the residual clause.
“Relevant background legal environment”
A reconstruction of what controlling law looked like at the time of sentencing. If that legal snapshot would have pushed a court away from the elements clause, a movant may infer residual-clause reliance. If the elements clause was available, the inference typically fails.
Certificate of appealability (COA)
A jurisdictional screening device for appeals in post-conviction cases. The panel noted it was granting a COA “out of an abundance of caution” on the residual-clause-reliance issue.

Conclusion

United States v. Sandoval-Flores solidifies a practical rule for Davis-based successive § 2255 litigation in the Tenth Circuit: a movant must prove, by a preponderance of the evidence, that the sentencing court actually relied on § 924(c)’s invalid residual clause—either through record indications or by showing the contemporaneous legal environment effectively required residual-clause use.

Where the sentencing record is silent and the predicate offense (here, attempted murder under 18 U.S.C. § 1114(a)(3)) readily fits within § 924(c)’s elements clause—especially given the broad consensus treating attempted murder as involving the “attempted use” of force—the movant will not meet that burden, and the § 924(c) conviction stands.